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A Detailed Analysis of Surrogacy Law in India

Surrogacy is originated from the Latin word surrogare, meaning to put in another's place,. It is the act of bearing the child of some other person. Surrogacy gained more attention due to the rise in infertility percentages in India. There exist two types of surrogacy. Each has its risks.

History of Surrogacy

Surrogacy started around 30 years ago from a legal point of view. But in a retrospective view, the idea of surrogacy is seen widely among most cultures. In 1881, the first successful surrogacy with artificial insemination happened in an ethically questionable way. It has gained a lot of criticism and issues since then.

There was no legal perspective till 1976 and that was when a lawyer drafted the first traditional surrogacy agreement. The surrogate mother didn't receive any monetary benefits. The first IVF(In Vitro fertilization) baby was born in the year 1978. There was no legal enforceability in any country.

Baby M 109 N.J. 396 (1998)

Baby M was the most controversial case in the history of Surrogacy. In this case, a couple wanted a child, so they signed a contract to pay the surrogate mother a sum of $10,000 to bear their child. After the child was born, the surrogate mother refused to give the baby. The court ruled out the agreement saying that it was invalid and against the public policy. The superior court stated that the payment of money made the contract criminal and illegal. The court gave the sole parental rights to the father.

Types of Surrogacy

As mentioned earlier, there are two types of surrogacy. They are:
  1. Traditional (Partial) Surrogacy

    Traditional surrogacy consists of a maternal bond between the surrogate mother and the child. The eggs of the surrogate mother and the sperm of the donor, or the man who wanted a child are used in fertilization. Partial or traditional surrogacy makes the surrogate mother, the biological mother. In the case of traditional surrogacy, it will be difficult for a mother to give away her child. It is an emotional instinct of the surrogate mother. The surrogate mother argues over her parental rights to keep the baby. Many women who want to surrogate, do not choose traditional surrogacy as it consists of numerous risks.
  2. Gestational Surrogacy

    Gestational Surrogacy also called full surrogacy, is where the surrogate mother will have less emotional, genetic connection with the baby. Here the eggs and the sperm are donated by someone else. Moreover, gestational surrogacy doesn't give rise to the risk of the change of mind in the surrogate mother to keep the baby. The surrogate mother is called a gestational carrier.

In terms of payment and benefits for the surrogate mother, there are two more types of surrogacy. They are:
  1. Altruistic Surrogacy
  2. Commercial Surrogacy

Altruistic Surrogacy is where the surrogate mother doesn't receive any compensatory benefit except medical expenses. Commercial Surrogacy is the commercialization of the service, where the surrogate mother receives benefits such as money in return.

Baby Manji Yamada v Union of India & Anr 13 SCC 518 2008

In the instant case, the Court cleared the discussions about surrogacy and types of surrogacy. The Apex Court defined the terms- Altruistic Surrogacy, Commercial Surrogacy, Gestational Surrogacy, and Traditional Surrogacy.

Baby Manji Yamada case played a crucial role in the enactment and establishment of surrogacy law in India. The case revolves around a baby who was born out of a surrogacy procedure. The intended couple was from Japan, but the surrogate mother was from India. After the baby's birth, she was affected by some viral infections. She was moved to a hospital in Jaipur, Rajasthan.

The Anand Municipality herein included the genetic father and issued a birth certificate. The grandmother of the child filed a writ petition under Article 32 of the Indian Constitution and challenged the validity of the judgement of the High Court. The Apex Court specified that the baby should be handed over to the father.

The Surrogacy (Regulation) Act, 2021

The Surrogacy (Regulation) Act was enacted on 25 December 2021 after it got the assent of President Shri Ramnath Kovind. In the Act, commercial surrogacy is termed as the buying and selling of human embryos i.e., commercial surrogacy is banned in the whole country. The Act created new regulations for surrogacy and a single man/woman can't opt for surrogacy. The Act mandates everyone to not print or air advertisements of commercial surrogacy.

The Act allows Altruistic surrogacy as an act of generosity between close relatives with a contract between them for the same. The intended couple must be 25 to 35 years old. The act made mandatory for the eligibility certificate and the proof on infertility of either of the husband or the wife. The couple must get the order regarding the parentage from the Magistrate of first-class or above.

A married woman having a child of her own can act as the intending woman. The Act provided that the surrogate mother can withdraw her consent anytime before the embryo is implanted. And she should be informed about the risks and consequences wholly before she chooses to accept. The Act also mandates the couple to provide insurance for the mother and child. It also mentioned that the couple should not abandon the baby born out of the surrogacy procedure. If anyone including the intended couple forces the woman to terminate, she can report to the appropriate authority.

Chapter 4 of the Act provides for the Registration of Surrogacy Clinics. The clinic must have the Certificate of Registration to function. For the purpose of registration of surrogacy clinics, a registry was established called the National Assisted Reproductive Technology and Surrogacy Registry.

A board called National Assisted Reproductive Technology and Surrogacy Board was constituted and the board consists of 23 members who are experts. Every decision and order of the Board must be signed and authenticated by the Chairperson. Every offence committed shall be cognizable, non-bailable, and non-compoundable.

Under section 46 of the Act, the clinic should maintain all the records, forms, consent reports, letters, and all other documents regarding surrogacy for a period of twenty-five years. If any clinic has pending criminal proceedings against it, it shall maintain the same till the final proceeding.

Under the Act, any person who:
  1. Abandons a child born out of surrogacy,
  2. Conducts sex selection,
  3. Undertake or run an unauthorized racket or group to perform activities related to surrogacy
  4. Exploits surrogate mother or the child
  5. Imports or helps to import human embryos
  6. Publish, distribute or advertise any information about commercial surrogacy,

Shall be punishable with:
  1. Imprisonment of a term which may extend to 10 years and
  2. A fine which may extend to ten lakh rupees.

Any couple who does not follow altruistic surrogacy and reaches out to any medical practitioner for conducting commercial surgery in an unethical way shall be punished with imprisonment which may extend to five years and a fine which extends to five lakh rupees.

Anyone who contravenes the provisions of this Act, rules shall be punishable with imprisonment which extends to 5 years, and a fine which extends to ten lakh rupees.

Surrogacy is legal in India. But, making it commercial is illegal. Surrogacy is a humanitarian act and is recognized by law. It is not permitted by Indian law. No couple should choose commercial surrogacy. Surrogacy comes under the reproductive choices of women and it is included as a fundamental right under the purview of Article 21 of the Indian Constitution.

  1. Baby Manji Yamada vs. Union of India and Another (2008) 13 SCC 518
  2. The Surrogacy (Regulation) Act, 2021
  3. Article 21 of the Constitution of India
  4. Baby M, 217 N.J. Super 313, (1987)

Award Winning Article Is Written By: Mr.Koushik Chittella

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